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Judicial Watch v. Department of Energy

Citation: 35 ELR 20127
No. No. 04-5204, (D.C. Cir., 06/17/2005)

The court held that federal agencies may withhold from disclosure documents bearing upon the deliberative processes of the National Energy Policy Development Group (NEPDG) pursuant to the Freedom of Information Act (FOIA) Exemption 5. Although the NEPDG is not itself an "agency" subject to FOIA, FOIA's deliberative-process privilege for government agencies still applies because neither Exemption 5 nor the cases interpreting it distinguish between the decisionmaking activities of an "agency" subject to FOIA and those of the president and his staff, who are not subject to FOIA. All that matters is whether a document will expose the predecisional and deliberative processes of the executive branch. In addition, the U.S. Department of Energy (DOE) need not search the records of DOE employees who were detailed to the NEPDG, as those records are not "agency records" within the meaning of FOIA. The U.S. Department of the Interior (DOI), however, must disclose the non-exempt documents of one of its employees who created or obtained those documents during the course of his official DOI duties.